NLRB Report Targets Unlawful Employer Handbook Rules

by LeClairRyan

On March 18, the National Labor Relations Board's Office of the General Counsel (OGC) published a Report Concerning Employer Rules that discusses a variety of employee handbook rules addressed by the board in recent cases. The report should be required reading for all employers, both unionized and non-unionized. In fact, non-unionized employers should pay special attention to the report, because their handbook rules typically have not been subject to the scrutiny of a collective bargaining process and the NLRB is increasingly targeting non-unionized employers in its investigations regarding employer rules.

As most employers are aware, the National Labor Relations Act (NLRA) gives employees the right to discuss wages, hours and other terms and conditions of employment with each other, and with other third parties. (Put in legal terms, employees have the right to engage in "concerted activities" related to their employment.) In order to comply with this law, employee handbooks cannot contain rules that explicitly restrict or prohibit concerted activities or rules that employees may reasonably understand to restrict concerted activities.

The OGC's report is broken into two parts: (1) Lawful and Unlawful Handbook Rules, which contains a summary of handbook rules that recently have been the subject of cases decided by the board; and (2) The Settlement (with a major fast-food chain), which provides an overview of handbook rules from a recently settled case in which the fast-food employer was charged with numerous unfair labor practice violations.

Examples of Lawful and Unlawful Handbook Rules
Part 1 of the OGC's report presents examples of handbook rules that the board has found unlawful or lawful, and provides brief explanations of the board's analysis of those rules. More specifically, the report addresses handbook rules related to:

  • Confidentiality of employees' terms and conditions of employment (e.g., discussion of wages)
  • Employee conduct toward the company and supervisors (e.g., employees criticizing or protesting an employer's labor policies)
  • Employee conduct toward fellow employees
  • Employee interaction with third parties (e.g., company media policies).
  • Employee use of company logos, copyrights and trademarks
  • Employee ability to take photographs and make recordings
  • Employees leaving work (e.g., walking off the job)
  • Employee activity that creates a conflict of interest between employee and employer

The rules and examples provided in Part 1 are presented in a user-friendly, easy-to-read format, and employers should be able to quickly glean some basic "do" and "don't" rules from the examples.

The Settlement
Part 2 of the OGC's report reviews a list of handbook rules at the center of a recently settled case between the NLRB and a fast-food employer. Many rules in this specific employee handbook were deemed overbroad and facially unlawful by the board, and the settlement between the parties included a series of modified rules that the employer agreed to include in a revised handbook. The OGC's report includes examples of the original, unlawful handbook provisions and of the lawful, modified rules.

Employers should find it a productive exercise to compare the language contained in the NLRB-approved rules with the original rules that the NLRB found unlawful, and then to review their own handbooks in light of that information.

Action Steps for Employers
First, employers should read the OGC's report.

Second, employers should carefully review their own handbooks, as well as other employee policies and rules, to assess whether those policies and rules are aligned with the guidance provided in the report. Many employers most likely will find language in their handbooks and other policies that, if not modified, could subject them to an action by the NLRB.

Third, employers should promptly revise and update any suspect language in their handbooks, policies and rules to ensure compliance with the law. However, before breaking out the red pens, keep in mind that merely cutting and pasting "lawful" rules from the OGC's report into existing handbooks is an unwise course of action. When it comes to drafting rules that comply with the law, context is critical. Rules that are "lawful" in the context of one policy may be unlawful in the context of another. Because many of the "lawful" rules excerpted in the report are just that - excerpts of larger policies - simply copying the language into a different handbook may not, in fact, result in a lawful handbook rule.

Finally, the OGC's report may be easy to read and understand, but do not be tricked into thinking the rules are either clear or simple. To the contrary, the board's interpretation of the scope of the NLRA is constantly evolving (mostly in favor of increased employee rights and more restrictive employer rules), and compliance can be quite complicated. Employers that discover potentially unlawful language in employee handbooks, rules or policies are advised to contact their labor and employment counsel for assistance in revising their policies to comply with the law.

To view the full report, this link will direct you to the NLRB site, then select GC 15-04 dated March 18, 2015.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© LeClairRyan | Attorney Advertising

Written by:


LeClairRyan on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.